Agenda - Planning Commission - 02/05/2009

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/0'=,\ Ii ) November 25, 20081 Volume 2 I No. 22 The City Council then re~onsidered the District's application. Ulti- mately, it voted 5 to 4 to grant the special use permit. Thereafter, the ,Manlys, who owned property adjacent to the land on which the District intended to build the s'oftball complex, filed a petition in district court. They argued that the City Council did not have the au- thority to grant the special ,use' permit with' a simple majority vote. Under the controlling law, K.S.A. ~ 12-757(d), when the Commission submitted a recommendation of disapproval, the City Council could: (1) adopt' the recommendation; (2) override the recommendation by a 2/3 majority vote; or (3) return the recommendation to the Commission for reconsideration. If the City Council chose the third option, then, after re~ consideration, the Commission would again submit a recommendation. "Upon receipt of such recommendation, the [City Council], by a'simple' majority thereof, [could] adopt or [could] revise or amend and adopt such recommendation...." The Manlys argued that, under the plain language of the statute, when deliberating the post-remand, reconsidered Commission recommen- dation, the City Council could only "adopt" or "revise or amend and adopt" the recommendation, but could not "override" it (as they had done in the case of the District's special use permit). The district court agreed with the Manlys that the City Council's ac- tion in overriding the Commission's recommendation with a simple ma~ jority vote violated K.S.A. ~ 12-757(d). The district court concluded that, under the statute, the City Council could only override the Commission's recommendation on a two-thirds majority vote. The City Council appealed. DECISION: Reversed and remanded for dismissal. I 1 i I I i ! ., I i I( .'-""", \ i Ultimately, the Supreme Court of Kansas held that, under K.S.A. ~ 12- 757(d), the City Council did have the authority to grant the special use permit with a simple majority vote after the Commission had reconsid- ered the proposal and reaffirmed its recommendation to deny the permit. The/court found that the district court in reaching its conclusion had improperly reconstructed the statute and "imported the override lan- guagel[requiring a 2/3 majority vote] applicable to the City Council's first~.onsideration of the original recommendation and grafted it onto the 1?ost-remand, reconsideration procedure." The court said the statute was~dear: The two-thirds super-majority vote was only applicable to the " ,I CityJ~ouncil's first consideration of the original recommendation. When deliberating on the post-remand, reconsidered Commission recommen- ) dation, the City Council could adopt a revised or amended recommenda- tion "by a simple majority" vote. @ 2008 Thomson ReutersMfest 3 I I I I I I , I i I I I' , i I 35